Vincent James Hussey v. State of Arkansas

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

OCTOBER 11, 2001

VINCENT JAMES HUSSEY

APPELLANT

v..

STATE OF ARKANSAS

APPELLEE

CR 00-269

APPEAL FROM THE DREW COUNTY CIRCUIT COURT,

NO. CR-96-34-2-A,

HON. SAMUEL B. POPE,

JUDGE

AFFIRMED; MOTION TO WITHDRAWN GRANTED

Appellant Vincent James Hussey was convicted by a jury in the Drew County Circuit Court of capital murder and aggravated robbery and was sentenced to life imprisonment without parole. His conviction was affirmed by this court in Hussey v. State, 332 Ark. 552, 966 S.W.2d 261 (1998). This court's mandate was subsequently issued on May 5, 1998. Appellant filed a pro se petition for postconviction relief pursuant to Ark. R. Cr. P. 37 on July 7, 1998. After conducting a hearing, the trial court dismissed Appellant's petition as untimely. Specifically, the trial court determined that pursuant to Rule 37.2(c), Appellant had sixty days from the date this court's mandate was issued to file his petition for postconviction relief; and, Appellant's petition was filed on the sixty-first day following the issuance of the mandate.

Pursuant to Anders v. California, 386 U.S. 738 (1967) and Ark. Sup. Ct. R. 4-3(j)(1), Appellant's counsel lodged the record on appeal to this court, and filed a motion to withdraw and a brief stating there was no merit to this appeal. In the briefs to this court, Appellant's counselasserts there would be no merit to any argument arising from the trial court's ruling that was adverse to his client. We agree.

The record reflects that Appellant was involved in a robbery and homicide at a Monticello used-car dealership. On direct appeal, Appellant argued that the State had failed to prove that he committed capital murder. He also argued that the trial court had erred in finding that he had voluntarily waived his rights, prior to implicating himself in the crime. After reviewing the entire record, this court concluded that no reversible error had been committed and affirmed Appellant's conviction.

The only adverse ruling to be reviewed in the present matter is the trial court's finding that Appellant's petition was not timely filed. As previously stated, the petition, which was filed on July 7, 1998, was not filed within sixty days as required under Rule 37.2(c). It is well-settled that the time limits imposed by Rule 37 are jurisdictional in nature; thus, the circuit court lacked jurisdiction to consider the untimely petition. See Hill v. State, 340 Ark. 248, 13 S.W.3d 142 (2000). Appellant's argument that his trial counsel failed to notify him that the mandate had issued does not excuse the untimely filing of his petition. See O'Brien v. State, 339 Ark. 138, 140, 3 S.W.3d 332, 333 (1999). As stated in O'Brien, it is Appellant's responsibility to determine when the mandate is issued. Accordingly, the trial court did not err in dismissing Appellant's petition.

Affirmed; motion to withdraw as counsel granted.